Tag Archives: Skagit County Criminal Defense Attorney

“If I am a suspect, then I want an attorney.” Clear Or Unclear Request For Counsel?

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Photo Courtesy of CCSNLUJ

In State v. Gardner, the WA Court of Appeals held that if a suspect makes an unequivocal request for an attorney predicated on a condition (here, “if I am a suspect, then I want an attorney”) it is a conditional invocation which the police must respect and the interrogation must cease pursuant to Miranda.

FACTUAL BACKGROUND

Mr. Gardner was a suspect in a homicide. He was contacted by police. They handcuffed Gardner, placed in the back of a patrol vehicle, and read his Miranda rights.  Gardner told a detective that if he was a suspect, he wanted an attorney. Although police admitted that Gardner was a suspect at the time he made this statement, they did not end the interrogation or provide Gardner with an attorney.

At trial, the judge denied Gardner’s motion to suppress evidence from the subsequent interrogation and concluded that Gardner’s request for an attorney was equivocal. As a result, Gardner’s recorded interview was admitted as evidence. He was found guilty of first degree murder, second degree assault, first degree unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gardner argues that the trial court violated his Fifth Amendment rights when it denied his motion to suppress his interview because detectives continued questioning him after he unequivocally requested counsel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals (COA) agreed with Mr. Gardner:

“Gardner’s request for an attorney was conditional, not equivocal. Since law enforcement knew that the condition was met, they should have ceased the interrogation until Gardner was provided an attorney or reinitiated contact.” ~WA Court of Appeals

The Court reasoned that the Fifth Amendment protects against self-incrimination. Accordingly, law enforcement officers are required to give Miranda warnings where an individual is subjected to custodial interrogation. Prior to being subjected to custodial interrogation, Miranda requires that an individual must be informed of their right to remain silent and their right to an attorney. If a suspect requests an attorney, law enforcement must stop all questioning until an attorney has been provided or the suspect reinitiates talking on their own.

However, once a suspect waives his Miranda rights, only an unequivocal request for an attorney requires law enforcement to cease questioning. The request for counsel must be sufficiently clear that a reasonable officer would know that Miranda has been invoked.  Conversely, a request that is ambiguous or equivocal, such that a reasonable officer under the circumstances would understand that the suspect might be interested in obtaining an attorney, does not require the officer to cease questioning.

Under that analysis, the COA issued its ruling:

“Here, Gardner told law enforcement that if he was a suspect, he wanted an attorney when he was taken in for questioning on June 13. Gardner was in fact a suspect at that point. This was a conditional request—if this, then that. There was nothing ambiguous about this request. Gardner was unsure whether he was a suspect, but if he was, he wanted an attorney. Law enforcement knew that the condition had been met because they knew that Gardner was a suspect. Because law enforcement knew that the condition had been met, Gardner’s statement was a clear invocation of his right to counsel.” ~WA Court of Appeals

The COA further conclude that the State failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt. Thus, the COA reversed Mr. Gardner’s guilty convictions and remanded his case for a new trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Is The Test Tube Vial Containing Your DUI Blood Test Expired? Doesn’t Matter. Still Admissible.

Bellingham Defense Attorney, Blood Test, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

EXPIRED BLOOD TUBES! Are expired... - Awanui Veterinary | Facebook

In Kanta v. Dept. of Licensing, the WA Court of Appeals decided an important case regarding blood test evidence preserved in test tube vials. Specifically, it addressed the issue of whether blood draw evidence is admissible even if (1) blood is drawn prior to a test tube vial’s expiration date, and (2) the blood test analysis occurred after the vial’s expiration date.

Some background is necessary. Blood collection tubes used in DWI cases are glass tubes/vials which are partially evacuated of air. These tubes/vials contain a preservative and anticoagulant (blood thinner).  The vacuum of the tube allows for the blood sample to be drawn into the tube. If there was no vacuum, the tube would not be able to draw the blood sample.  Thus, an expiration date is placed on the tube label.

FACTUAL BACKGROUND

Mrs. Kanta was arrested for DUI in July 2021. Shortly after her arrest, a phlebotomist drew a sample of Kanta’s blood which was sent to a laboratory for analysis. The laboratory tested Kanta’s blood for alcohol in May 2022. In September 2022, the lab issued a report stating that Kanta’s blood sample contained 0.18% alcohol. In November 2022, the Department of Licensing (DOL) suspended Kanta’s driving license. Kanta contested the suspension, arguing that because the vial used to store her blood expired in November 2021, the blood was not properly preserved and therefore did not comply with the Washington Administrative Code (WAC). A hearing examiner rejected Kanta’s argument and affirmed the suspension.

Kanta appealed to the superior court. The superior court found that substantial evidence supported the hearing examiner’s conclusion that the blood test complied with the necessary criteria, and was therefore properly admitted. Kanta appeals to the WA Court of Appeals, arguing that the hearing examiner erred in admitting the results of her blood test into evidence because the vials were expired at the time of testing. As such, Kanta argues, the superior court erred in affirming the suspension of her license.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals agreed with the superior court and the DOL.

The Court reasoned that WAC 448-14-020(3) provides that blood samples must be placed in a “a chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper,” and “must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration.” Furthermore, the code explains that “suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.”

“Kanta does not take issue with the procedures involving the reporting or analysis of her blood,” said the Court of Appeals. “Rather, she confines her complaint to the manner in which her blood was stored prior to testing because although the tubes had not yet expired at the time her blood was collected and placed inside the tubes, they expired roughly four months after collection and her blood was not tested for another six months after that.”

Here, the DOL presented three exhibits to the hearing examiner: a certificate of compliance for the blood collection tube used, the report from law enforcement, and a credential verification from the Department of Health. The Court of Appeals gave much weight to the significance of the certificate of compliance:

“The certificate of compliance establishes that the tube used in Kanta’s blood sample met the necessary requirements for preservatives and anticoagulants. According to the certificate of compliance, the tube used in Kanta’s blood test contained 18 to 23 milligrams of potassium oxalate and 90 to 115 milligrams of sodium fluorite. The certificate also established that the tubes were certified to be sterile and complied with manufacturing regulations.” ~WA Court of Appeals

Furthermore, the arresting officer’s police report stated that “prior to providing this blood kit to the phlebotomist I checked to make sure that the tubes were in good condition, were not expired, and that the white preservative anticoagulant powder was present in the tubes.”

Next, the Court of Appeals bluntly addressed the issue of whether a person’s blood must be tested prior to the expiration of the test tubes holding the blood:

“Kanta focuses all of her arguments on the admissibility of her blood test. The WAC does not require that the blood in the test tubes be tested prior to the expiration of the tubes. As we note above, once the DOL satisfies its initial burden of producing prima facie evidence establishing that the test complied with the code, the test results are admissible.” ~WA Court of Appeals (emphasis supplied).

My opinion? The Court of Appeals issued a rather narrow, cut-and-dried opinion which was strictly conscripted to the WAC. Obviously, the WAC must be changed to require that blood be tested prior to the expiration of blood vials/tubes. Expired blood test vials can lead to inaccurate results, especially for coagulation testing. This is because expired tubes may have lost their sterility or vacuum, or contain an anticoagulant that is no longer effective. Additionally, if a tube is used past its expiration date, the vacuum may not be able to draw enough blood to fill the tube, which can lead to short-filled tubes that are not suitable for testing.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

2024 Brings Massive Reduction in Drug Overdose Deaths

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Fewer US overdose deaths were reported last year, but experts are still cautious
Excellent article in NPR by news correspondent Brian Mann indicates 2024 is seeing a massive dropoff in drug overdose deaths. For the first time in decades, public health data from the CDC already shows an unprecedented decline in drug deaths of roughly 10.6 percent. That’s a huge reversal from recent years when fatal overdoses regularly increased by double-digit percentages.

“In the states that have the most rapid data collection systems, we’re seeing declines of twenty percent, thirty percent,” ~Dr. Nabarun Dasgupta, an expert on street drugs at the University of North Carolina.

According to Dasgupta’s analysis, the drop in state-level mortality numbers corresponds with similar steep declines in emergency room visits linked to overdoses. In many states, the sudden drop in drug deaths stunned some observers who lived through the darkest days of the fentanyl overdose crisis.

RAW DATA

  • Deaths in King County, Washington, linked to all drugs have dropped by 15 percent in the first half of 2024. Fatal overdoses caused by street fentanyl have dropped by 20 percent.
  • Overdose deaths in Ohio are down 31 percent. Ohio is now in the ninth consecutive month of a historic and unexpected drop in overdose deaths.
  • Overdose deaths in Missouri have now fallen roughly 34 percent in the second quarter of 2024.

DESPITE THE “GOOD NEWS,” DRUG OVERDOSE DEATHS PERSIST

After years of wrenching drug deaths that seemed all but unstoppable, some researchers, front-line addiction workers, members of law enforcement, and people using street drugs voiced caution about the apparent trend. Roughly 100,000 deaths are still occurring per year. Street drug cocktails including fentanyl, methamphetamines, xylazine and other synthetic chemicals are more poisonous than ever.

But most public health experts and some people living with addiction told NPR they believe catastrophic increases in drug deaths, which began in 2019, have ended, at least for now. Many said a widespread, meaningful shift appears underway.

WHAT INTERRUPTED THE DRUG OVERDOSE DEATH TREND?

  • Many people using fentanyl now carry naloxone, a medication that reverses most opioid overdoses.
  • Rapid improvements in the availability and affordability of medical treatments for fentanyl addiction.
  • More funding for addiction treatment and healthcare services, especially in Black and Native American communities where overdose deaths remain catastrophically high.
  • Fentanyl may be harder to find and less pure in some areas because of law enforcement efforts targeting Mexican drug cartels.
  • The chemical xylazine is also being mixed with fentanyl by drug gangs. While toxic in humans, causing lesions and other serious long-term health problems, xylazine may delay the onset of withdrawal symptoms in some users. Dasgupta said it’s possible that means people are taking fewer potentially lethal doses of fentanyl per day.
  • The end of the COVID pandemic, combined with the high number of people who have already died from drug overdoses.

My opinion? Quite often, drug addiction & homelessness go hand in hand. At times, drug use can temporarily provide a brief reprieve to the challenges of homelessness. For others, the mere stresses of life can make everyday, tax-paying citizens seek drugs and alcohol to self-medicate.

Many people don’t understand why or how other people become addicted to drugs. They may mistakenly think that those who use drugs lack moral principles or willpower and that they could stop their drug use simply by choosing to. In reality, drug addiction is a complex disease, and quitting usually takes more than good intentions or a strong will. Drugs change the brain in ways that make quitting hard, even for those who want to.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Study: Bail Reform Does Not Increase Crime

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A new study found no significant relationship between bail reform and crime rates. The study debunks the notion that bail reform led to the mid-pandemic spike in violent crime. The report, published by the Brennan Center, analyzed monthly crime data from 2015 through 2022. It included 22 cities that adopted bail reform and 11 cities that did not. Researchers looked at all major offenses across jurisdictions and then at specific types of crime.

The study also examined the impact of reforms according to whether they were implemented through legislation, court order, or changes in prosecutorial policy. Finally, the study focuses on cities where research shows reforms had large effects on how and when bail was set.

BACKGROUND

More than a dozen jurisdictions across the country have curtailed the use of money bail over the past decade. But after violent crime rose sharply in the first year of the Covid-19 pandemic, many politicians, police leaders, and pundits were quick to blame bail reform. Claims that bail reform undermines public safety ultimately led to a series of rollbacks. This study tested those claims.

“Ultimately this report finds no statistically significant relationship between bail reform and crime rates. In other words, there is no reason to believe that bail reform has led to increased crime. This holds true even when focusing on major policy changes that have drawn public scrutiny, like those in New York and New Jersey.” ~Bail Reform & Public Policy Study

Even after testing different types of reform, researchers still found no evidence to support a connection between bail reform and the uptick in crime since the pandemic.

In 2020, homicides surged 29 percent for the biggest one-year jump in FBI records. While some pointed the finger at bail reform, some experts suggested the massive disruption of the pandemic, gun violence, worries about the economy and intense stress were to blame. Fortunately, violent crime has been decreasing since 2022. FBI statistics released in June showed violent crime dropped considerably in the first few months of this year.

My opinion? The study’s findings add to a growing body of literature showing that bail reform is an unlikely explanation for recent trends in crime, whether increases or decreases. And they suggest that policymakers’ recent focus on weakening bail reforms as a response to crime has been misguided — and a distraction from smarter and more promising ways to enhance public safety.

Please review my Making Bail legal guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

When Victims Are Charged As Accomplices To Crimes

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What happens when crime victims are prosecuted as accomplices to their abuser’s criminal conduct? A recent Marshall Project investigation found survivors of domestic violence and sexual offenses are particularly vulnerable to prosecution because of the control their abusers hold over them.

THE PROBLEM

Even if a person does not directly commit a crime, they can still be punished for it. That’s because every state in the U.S. – including WA State – has a version of “accomplice liability.” These are laws that allow someone to be punished for assisting or supporting another person who commits a crime. In some cases, accomplice liability is prosecuted on victims even if their participation is under the threat of violence.

In some states, it does not legally matter if a person helped with a crime because they were threatened with death or feared physical violence. As a result, evidence of domestic abuse may not be considered relevant. In other cases, a survivor’s history of abuse may be used to justify their punishment.

THE NUMBERS

A study of 72 women serving life in Michigan prisons found 60% were there for a murder they didn’t commit. Most of those crimes were connected to a man they had a relationship with. In a different survey of people serving time for murder or manslaughter in women’s prisons, 13% of the respondents said they had been convicted for a crime committed with their abuser.

Reviewing court documents, the Marshall Project found nearly 100 cases where prosecutors charged a person (almost always a woman) for supporting, taking part in or failing to stop a crime by their alleged abuser. The cases include a woman who is in prison because her boyfriend severely beat her child, even though she wasn’t home at the time. In another instance, a woman helped her abuser sell stolen goods after a murder because, she said, she was afraid he would kill her.

POSSIBLE SOLUTIONS

Lawmakers and advocates for survivors say there are two ways to tackle the problem. The first would be to limit accomplice liability so fewer people can be charged using those laws. Another approach some states have taken is to rethink how domestic violence victims are sentenced. New York’s Domestic Violence Survivors Justice Act, passed in 2019, allows judges to depart from mandatory minimums when sentencing (or resentencing) survivors. According to the Survivors Justice Project, which works to free victims of domestic violence from prison, 64 people have been resentenced in New York after filing applications.

DEFENSES AT TRIAL

In WA State, Duress is a substantive defense to criminal charges, including accomplice liability. The Duress defense exists if (1) The defendant participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the defendant that in case of refusal the defendant or another person would be liable to immediate death or immediate grievous bodily injury; (2) such apprehension was reasonable upon the part of the defendant; and (3) the defendant would not have participated in the crime except for the duress involved.

Please contact my office if you, a friend or family member are charged as an accomplice to a crime. Duress might be an available defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

Is Today’s Marijuana Too Strong?

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Photo Courtesy of Emily Zaboski/Daily Free Press Staff

Excellent article in the Atlantic by Malcolm Ferguson reports that marijuana users are realizing marijuana has become noticeably stronger. A drug they once turned to for fun and relaxation now triggers existential dread and paranoia.

In 2022, the federal government reported that THC — the psychoactive compound in weed that makes you feel high—had more than tripled compared with 25 years earlier, from 5 to 16 percent. That may understate how strong weed has gotten. Walk into any dispensary in the country, legal or not, and you’ll be hard-pressed to find a single product advertising such a low THC level. Most strains claim to be at least 20 to 30 percent THC by weight; concentrated weed products designed for vaping can be labeled as up to 90 percent.

For the average weed smoker who wants to take a few hits without getting absolutely blitzed, this is frustrating. For some, it can be dangerous. In the past few years, reports have swelled of people, especially teens, experiencing short- and long-term “marijuana-induced psychosis.” The consequences include hospitalizations for chronic vomiting and auditory hallucinations of talking birds. Multiple studies have drawn a link between heavy use of high-potency marijuana, in particular. The development of psychological disorders, including schizophrenia, have increased.

WHY HAS MARIJUANA POTENCY INCREASED SO MUCH?

The simplest explanation for this is that the casual smokers  aren’t the industry’s top customers. Serious stoners are. Regular users tend to develop a high tolerance, and their tastes drive the industry’s cultivation decisions. The industry is not shy about this fact.

My opinion?The history of drug enforcement in America was long one of discriminatory, draconian enforcement. But the shift toward legal weed has tacked too far in the opposite direction. If marijuana is to be sold legally, consumers should know what they’re buying and have confidence that someone is making sure it’s safe.

Please contact my office if you, a friend or family member are charged with a Drug Offense, DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Survey: Cannabis and Hallucinogen Use Remains At Historically High Levels

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weed-as-a-hallucinogent

Excellent article by CNN reporter Carma Hassan, says the use of cannabis and hallucinogens stayed at historically high levels among both younger and middle-age adults in the US in 2023. The data was released from a survey from Monitoring the Future, a study conducted by researchers at the University of Michigan since 1975 and funded by the National Institutes of Health.

THE NUMBERS

The survey showed that about 2 in 5 adults (42%) ages 19 to 30 reported using cannabis in the previous year. Nearly 10% of that group saying they used cannabis nearly every day. And for the first time, more women ages 19 to 30 reported cannabis use than men in the same age group. However, there was a higher prevalence of men using cannabis than women in the older age group. About 29% of midlife adults — people ages 35 to 50 — reported using cannabis at least once in the past year. Nearly 8% reporting using cannabis on a daily basis.

 “On average, a certain number of people in any group that’s a sizable portion are using marijuana on a daily or near-daily basis. And I think that bears watching, and those levels are at a historical high. Although they didn’t increase this year compared to the previous year, they’re still at quite high levels.” ~Dr. Wilson Compton, deputy director of the NIH’s National Institute on Drug Abuse.

CANNABIS VAPING

Cannabis vaping rose slightly among younger adults. Nearly 1 in 5 adults in that age group say they used it at least once in the past year. For midlife adults, about 9% of people in that group admitted vaping cannabis in the past year. Nicotine vaping also stayed high among both groups of adults, according to the report.

HALLUCINOGENS

The study discussed the use of hallucinogens – such as LSD, mescaline, peyote, PC and shrooms or psilocybin. In short, use of these drugs hovered around the same as in 2022, They landed at 9% for adults 19 to 30 (versus 8% the previous year) and 4% for adults 35 to 50 in 2023 and 2022.

“We have seen that people at different stages of adulthood are trending toward use of drugs like cannabis and psychedelics and away from tobacco cigarettes . . . These findings underscore the urgent need for rigorous research on the potential risks and benefits of cannabis and hallucinogens – especially as new products continue to emerge.” ~Dr. Nora Volkow, director of the National Institute on Drug Abuse.

ALCOHOL

The most-used substance among adults is still alcohol. Here, more than 4 in 5 younger adults (84%) reporting drinking in the past year. However, frequent drinking – either monthly, daily or binge drinking – all decreased in 2023 from the decade prior among 19- to 30-year-olds.

CIGARETTES, OPIOIDS & PRESCRIPTION DRUGS

The researchers also noted other decreases in drug use, reflecting a shift in habits. Cigarette smoking and use of opioid medications and prescription drugs for nonmedical reasons “maintained five- and 10-year declines” for both age groups.

n 2023, drug overdose deaths decreased for the first time since 2018, according to preliminary data from the US Centers for Disease Control and Prevention’s National Center for Health Statistics. About 107,500 people died from a drug overdose in 2023, the data showed, driven by fentanyl and synthetic opioids.

While only slight changes were observed compared with the previous year’s Monitoring the Future survey results, the researchers say the results still help inform the bigger picture — especially as the survey respondents age.

Please contact my office if you, a friend or family member are charged with a DUI, Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Expert Witness’s Misleading Statements at DUI Trial Were “Harmless Error.”

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Harmless Error Rule | Legal Terms

In State v. Wasuge, No. 85286-8-I (August 12, 2024)., the WA Court of Appeals (COA) held the trial court mistakenly admitted expert testimony in a DUI case that the general population metabolizes alcohol at a rate of .01 to .02 percent per hour. Also, the trial court erred when it admitted expert testimony that the American Medical Association (AMA) recommends that state legislatures lower the “per se” blood alcohol concentration (BAC) limit for driving under the influence (DUI) offenses from .08 to .05 percent. Despite the trial court’s errors, the COA nevertheless upheld Mr. Wasuge’s convictions because the errors were harmless.

FACTUAL BACKGROUND

On the morning of October 12, 2022, a 911 caller reported that a vehicle had abruptly stopped in the center of a residential road. Upon arriving at the scene at approximately 6:45 a.m., King County Sheriff’s Office Deputies saw a stationary vehicle in the southbound lane of the road with its headlights and taillights illuminated. The officers noticed the vehicle’s engine was running, the keys were in the ignition, and the transmission was in drive. The officers also observed Mr. Wasuge sitting in the reclined driver’s seat asleep with his feet resting on the floorboard.

The officers decided to “box the vehicle in” by parking their vehicles in front of and behind Wasuge’s vehicle. A deputy then knocked on the front driver’s side window and announced himself as a law enforcement officer. When Wasuge awoke, he looked at an officer and began rolling down the back driver’s side window before rolling down the front driver’s side window. A police officer immediately smelled “an odor of alcoholic beverages coming from the vehicle” and ordered Wasuge to put the gearshift in park and exit the vehicle, which he did.

When police asked Wasuge “why he was asleep in the middle of the roadway,” Wasuge said he was waiting for a friend and pointed at different houses in multiple directions. The officer suspected that Wasuge had been drinking alcohol because his breath smelled of alcohol; his speech was slurred; his eyes were bloodshot, glassy, and watery. Wasuge was also unbalanced when walking and standing; and he generally appeared “dazed and confused.” Police asked Wasuge if he had been drinking, which Wasuge denied. After Wasuge performed poorly on the field sobriety tests, he placed him under arrest for DUI. Farley then transported Wasuge to a hospital where a nurse drew his blood. Later testing of this blood determined that Wasuge’s BAC was .076 percent.

Mr. Wasuge was charged with DUI, Operating a Vehicle Without an Ignition Interlock Device, and Driving While License Revoked.

At trial, the jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach a unanimous verdict on count 1. Instead, the jury convicted Wasuge of the lesser included offense of being in Actual Physical Control of a Motor Vehicle While Under the influence.

COURT’S ANALYSIS & CONCLUSIONS

Regarding the Expert Witness Testimony issue, the trial court abused its discretion in admitting the contested portions of Dougher’s testimony. Because the expert’s testimony about hypothetical per se BAC limit was not relevant to any issue in the trial, the trial court abused its discretion by admitting it.

“The State’s reliance on inadmissible testimony in this case is especially concerning, as it appears to be strategic. The State, as noted previously, did not seek to convict Wasuge under the “per se” prong of RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a). Nor did it present a retrograde extrapolation, which might have been used to show that Wasuge’s BAC was .08 percent or higher while he was driving or in actual physical control of the motor vehicle.” ~WA Court of Appeals

Nevertheless, the COA found the errors harmless in light of the overwhelming evidence that Mr. Wasuge drove under the influence.

“These evidentiary errors would warrant reversal if this were a close case. But it is not. Under the nonconstitutional harmless error standard applicable to evidentiary errors, Wasuge is not entitled to a new trial unless he shows that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” ~WA Court of Appeals

Here, police found Wasuge asleep behind the wheel of a vehicle sitting in the lane of travel with the engine idling and the gearshift in drive. Wasuge smelled of intoxicants. His speech was slurred, and his eyes were glassy, bloodshot, and watery. Wasuge performed poorly on the field sobriety tests. Lastly, Wasuge admitted to drinking multiple beers before driving the vehicle, and he had a BAC of .076 percent about two hours after he was first discovered behind the wheel of his vehicle.

“Because Wasuge has not shown that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected, he is not entitled to a new trial on this basis,” said the COA. With that, the COA upheld Mr. Wasuge’s convictions.

Please contact my office if you, a friend or family member are charged with DUI or any other rime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Kratom: “Gas-Station Heroin” Known For Its Opioid and Stimulant-Like Effects

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So-called 'gas station heroin' is easy to find, potentially dangerous to use

Journalist Marquise Francis wrote an excellent article in NBC News discussing Kratom, an herb with opioid and stimulant-like effects. Kratom is sold legally and widely at vape shops, gas stations and convenience stores in liquid, tablet or powder form. It is sometimes referred to as “gas station heroin.” The American Kratom Association, which advocates for consumer access to the substance, says it’s a roughly $1.5 billion-per-year industry.

Kratom contains a chemical compound called mitragynine, which stimulates the same brain receptors as opioids. That is partially why it can become addictive, according to experts. At high concentrations, the substance can cause nausea, seizures, vomiting, difficulty breathing and, in the most extreme cases, death.

Kratom is not regulated as a controlled substance. However, the Drug Enforcement Administration lists it as a “drug of concern.” The FDA has not approved kratom for any purpose, but supplements do not require the agency’s sign-off to be sold.

OVERDOSE DEATHS

Kratom was the cause of 91 overdose deaths from July 2016 to December 2017, according to a report from the Centers for Disease Control and Prevention. But some estimates put the toll far higher: An analysis by The Washington Post found kratom listed as the leading or partial cause of death in at least 4,100 deaths from 2020 to 2022, and an investigation by the Tampa Bay Times last year found that more than 580 people in Florida alone had died from kratom-related overdoses since 2013.

The DEA sought to temporarily reclassify kratom as a schedule 1 substance in 2016, but reversed course following a backlash. So in lieu of federal oversight, a growing number of states and cities have been cracking down on kratom on their own. at least six states — Alabama, Arkansas, Indiana, Rhode Island, Vermont and Wisconsin — have banned kratom entirely.

AN EMERGING ISSUE

In a letter published Monday in the journal Annals of Internal Medicine, a group of researchers called kratom an “emerging issue” and suggested that physicians consider asking patients about their kratom use, the same way they do about cannabis, cocaine, methamphetamines or heroin. The paper suggests that as of 2022, roughly 1.9 million people in the U.S. had used kratom, though the authors suggest that’s an underestimate.

FOUR GROUPS OF KRATOM USERS

Kratom users are classified into four primary groups. The first is people with opioid use disorder who buy kratom either to tide them over until they can get more opiates or as an attempt to wean themselves off even harder stuff. The second is people who say kratom helps them with pain management. The third are users with anxiety, depression or some other mood disorder. The fourth and final group are those who simply enjoy the stimulant effects.

Please contact my office if you, a friend or family member are charged with a Drug Offense, DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Invoking The Right To An Attorney During Police Interrogations

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What does a police interrogation/interview room usually look like? - Quora

In State v. Wilson, the WA Court of Appeals held that a Defendant invokes his right to an attorney when he says, “So, I’m going to have to ask for legal representation, not out of resistance or— or—anything,” when interviewed by police.

FACTUAL BACKGROUND

Mr. Wilson was investigated for the shooting death of his ex-wife. He was transported to the police station for an interview. The interrogation was video-recorded. During the interview, the following exchange took place:

DETECTIVE: “Yeah. Do you want me to call you Mr. Wilson or Wendell?”

MR. WILSON: “Whichever you’re comfortable with.”

DETECTIVE: “Okay. Okay. Go ahead.”

MR. WILSON: “Um . . . I know I can’t afford a lawyer.”

DETECTIVE EDWARDS: “Okay.”

MR. WILSON: “So I’m going to have to ask for legal representation, not out of resistance or—or—anything . . .”

DETECTIVE EDWARDS: “Mm-hmm.”

The interview proceeded. During the interview, Mr. Wilson described the argument that concerned installing a baby gate in the kitchen, which eventually escalated with Mrs. Wilson threatening to move out. The argument took place throughout the apartment, and the two were in the master bedroom before Mr. Wilson retrieved the gun from the adjacent bedroom. Mr. Wilson stated the gun was in a closet up on a shelf in a gun case.

Mr. Wilson stated he came out of the adjacent bedroom at the same time Mrs. Wilson came out of the master bedroom. The two stood about a foot apart. When asked if he intended to shoot Mrs. Wilson when they met, Wilson said, “I said yes earlier and . . . no,” but did say he intended to hurt her, though he further stated he intended to “more scare her.”

When asked what was his intention for using the gun, Mr. Wilson stated, “It comes down to the dominance thing.” Wilson explained it showed “who’s got the power.” He agreed with the Detective that Wilson’s use of the gun showed Mrs. Wilson that he had the last word. When Mr. Wilson shot Mrs. Wilson, she was well into the room because she started backing up, looked scared, and put her hands up in a defensive position. Mr. Wilson said when he went to get the gun, it was out of “rage,” and fear never crossed his mind.

The State charged Mr. Wilson with first degree murder. In a pretrial CrR 3.5 hearing, Wilson argued his statements “I know I can’t afford a lawyer” and “I’m going to have to ask for legal representation” were an unequivocal invocation of his right to counsel. However, the trial court ruled Wilson did not unequivocally invoke his right to counsel and the interview statements were admissible.

The State played the interview at trial. The jury convicted Wilson of first degree murder. 

COURT’S ANALYSIS & CONCLUSIONS

“Whether a criminal case unequivocally invoked Miranda rights is a mixed question of law and fact,” said the Court of Appeals (COA). “The question is whether, as a matter of law, it was reasonable for the detectives to conclude that the right to counsel was not invoked.”

The COA reasoned that before any custodial interrogation, a suspect must be informed that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.’ (quoting Miranda) Once warnings have been given, the subsequent procedure is clear. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

However, the suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for counsel. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

The COA engaged compared  numerous prior rulings leading cases: State v. Whitaker (cited by the State) and State v. Pierce (cited by the defense).

“The point of the objective standard for invoking Miranda rights is to give law enforcement a bright line rule that can be applied without requiring questioning to cease merely if a suspect makes a statement that might be a request for an attorney. It is not enough to surmise from background circumstances that a suspect probably would want counsel, and by the same token surmise from circumstances that a suspect probably would not want counsel cannot defeat a clear statement that ‘I’m going to have to ask for legal representation.’ Having reviewed de novo Wilson’s statements, their context, and the video and audio recording of the interview, we conclude Wilson unequivocally invoked his right to counsel. The admission of the interview at trial was error.” ~WA Court of Appeals

The COA therefore reversed Mr. Wilson’s judgment of conviction. It also held that in the event of retrial, the interview with the detective must be excluded as substantive evidence under Miranda.

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